Latin is not dead - anomalies in property titling

In brief - We regularly do what it takes to correct titling anomalies. Sometimes it takes a crash course in Latin. 

Australians are flocking in droves to learn French, Mandarin and Japanese. Duolingo is a $5.6 billion business and can give you enough training in two weeks to have you peppering your gestures with sufficient words to be understood by patient locals in your dream travel destination.

But Latin speakers may be a vulnerable species. The New South Wales Education Standards Authority lists Latin as a high school certificate subject but it is a privileged few who find it on offer in their high school. There are greater opportunities at tertiary level with approximately 60% of Australian universities offering Latin. Recent estimates put proficient Latin speakers at between 20,000 and 30,000 people worldwide.

Apologies to any linguists whom I ask to indulge me as they read on… When you refer to a pain in your 'abdomen', the 'bonus' you hope to achieve, you attend the 'circus', attend uni on 'campus', 'focus' on your health, watch the 'Formula' 1 racing or order a 'gluten' free meal, you're speaking Latin.

Ecclesiastical Latin remains the official language of the Holy See and the Roman Rite of the Catholic Church at Vatican City. Latin roots are still used in English descriptions of theology, anatomy, taxonomy, medicine and law.

Lawyers have the benefit of dabbling in Latin when we describe a person who exercises good faith as acting 'bona fide', describe matters that are accepted as correct until proven otherwise as 'prima facie' and describe the maxim that people who voluntarily risk danger cannot sue for any resulting injury as 'volenti non fit injuria'. If you follow football, you have no doubt come across the media challenging 'volenti non fit injuria' in the wake of so many concussion injuries arising rising from the sport.

Apologies to any historians whom I ask to indulge me as they read on…My feelings for Latin are much the same as my feelings for the lustre of Ming porcelain, the mystery of Egyptian shabti boxes and the intricacy of Viking Karves. The timelessness, longevity and artistry of the language generate a thrill of connection with this ancient tool.

Although Latin dates back to the 7th Century BC, and is used extensively and actively, it lacks native speakers. Technically, this renders it a dead language. Despite this unfortunate label, it is very much alive. 

Untangling a century old titling anomaly

We recently experienced the beating heart of Latin when untangling a century old titling anomaly for one of our faith based clients. Titling anomalies are common for faith based clients because of the longevity of their landholdings. Churches that have held properties since the 1800s have seen a lot in that time. 

Their tenure has seen subdivision after subdivision as living density has intensified, the introduction of Torrens Title, the Plenary Councils of 1885, 1895, 1905 and 1937, the codification of Catholic canon law in 1917, the introduction of the Church Trust Property Acts in the 1930s and the recent abolition of certificates of title. As a result of this complex tapestry of change, the threads of the title can get a little tangled. The registered proprietors of properties may be:

• clergy who have passed away because the titles were overlooked when the Church Trust Property Acts were passed
• members of the Congregation or parishioners who held the property on trust for the church before the Church Trust Property Acts created a statutory trustee to hold land
• the wrong entity because properties were initially held by entities that predate the Church Trust Property Acts and have since become defunct or renamed such as entities that once operated schools, social services, hospitals, hospices or other specific ministries or services.

Even if long-held properties are registered in the right name, they may now have incorrect title boundaries. Prior to the introduction of Torrens Title, churches proved their title to land by a series of handwritten documents including statutory declarations, Wills, conveyances (transfers) and deeds. In the conversion to Torrens title, human errors in the series of documents may have been overlooked, rather than corrected. 

Common examples of this are where churches occupy land which used to be a road or a right of way without having a documentary title to it. Often these anomalies are only discovered when the church looks to consolidate or sell the land and struggles to correct the anomaly within the project timeframe.

Finally, churches occasionally find themselves occupying land they simply do not have documentary title to. This is most likely to arise when the church has possessed land for so long that they have a  widely acknowledged possessory title to it despite the documentary title to the whole or part of it belonging to some other person who has long since passed.

Transferring land from individual trustees to statutory trustees

We regularly do what it takes to untangle the threads necessary to correct these titling anomalies. Sometimes translating Latin is what it takes to do so. We recently assisted some Catholic Trustees in transferring a title into their statutory name after having been held in the names of individual trustees since 1905. 

The property could not be transferred to The Trustees upon the passing of the Roman Catholic Church Trust Property Act in 1936 because the evidence that the registered proprietors were acting in their capacity as trustees was lost in the mists of time.

Historical evidence from the Plenary Council leads to breakthrough

After researching the colonial statutes applicable to trusts in 1905, consulting canon lawyer, Fr Matthew Muller and considering the interplay between canon law and civil law, we identified that the Plenary Council Decrees provided the necessary evidence to demonstrate that the registered proprietors held the land in their capacity as trustees.

Plenary Councils are a council of Catholic Metropolitans and Bishops presided over by a delegate of the Apostolic See who has received special power for that purpose and has a legislative function to create canon laws.

Our canon law expert had identified that a Decree passed by the Third Plenary Council in 1905 said:

In those places where there is no provision in civil law (regarding church property) to prevent church/ ecclesiastical goods/property from falling into outsiders' possession/hands the Bishop is to ensure that the title deeds and other documents required by civil law are placed in the care of at least three curators appointed by their local Ordinary. These should be the Bishop himself and at least two priests who are men/persons of prudent judgment and experience in these matters. They should meet at least once a year to look after the property. Should any of these for whatever reason be unable to perform his duties the Bishop is bound to appoint another to take his place.

At this point, we got down to tin tacks. Although the Third Plenary Council was held in 1905 and our titling anomaly dated from the same year, the titling anomaly predated the Third Plenary Council by a matter of months. So close ... but so far! It turned out that the decrees applicable to the 1905 title were in fact made at the Second Plenary Council held in Sydney in 1895. So, we went in search of the corresponding decrees from 1895. 

Both the 1895 decrees and 1905 decrees were written in Latin. With some supporting tools from the National Library, we were able to identify key Latin terms that were common to both decrees. We had found our Rosetta Stone!

The historical evidence from the Second Plenary Council and a formal Latin to English translation (from one of that vulnerable species that are proficient in Latin) were submitted to Land Registry Services and the century old titling anomaly was solved.

What to do you if you have a titling anomaly 

If you have titling anomalies, we are happy to help you untangle them. Although Catholic canon laws helped to resolve the anomaly in this article, they were valuable as historical evidence. The key to unravelling titling anomalies is the historical evidence that each congregation or parish has in spades.

Even though certificates of title were cancelled on 11 October 2021, they still have significant value as historical evidence. Even if you never need them for evidentiary purposes, they are of immense historical value in their own right. Calligraphy on vellum … Crown grants ... wax seals will always give a thrill to historians.

The memories of your parishioners and church members, parish registers, photographs, newsletters, school, and institutional histories are also valuable sources evidencing the use and occupation of land over time.

There is no time like the present to correct your titling anomalies. Unless well¬ preserved, historical records can be lost and the memories of your parishioners and church members can fade. The sooner titling anomalies are addressed the easier they are to resolve.